By David Flomberg

Content is value.

Sadly, it’s evident that the people responsible for distributing content have long forgotten that fact. From the streaming model — e.g. Spotify, Apple Music, etc. — that cratered the financial value of recording artists’ music to the SAG/AFTRA strike now stretching into its second month, it’s apparent that the list of entities who want a piece of the value of art created by other people has grown exponentially greater than what the movie houses and record labels of yesteryear chiseled out.

And while SAG/AFTRA has some measure of leverage in this battle, for musicians it’s a David and Goliath story where Goliath wins, whether it’s in the local scene or when it’s on a national stage. In this case, it’s the “Pay-to-Play” model, where musicians literally pay a promoter or the venue to perform on the stage. And while it’s not a new concept by any measure, it is creeping into new areas of Colorado’s music and arts scene.

On The Big Stages

When The Weeknd performed for the Super Bowl halftime performance in 2021, he didn’t make a dime. 

In fact, he spent more than $7 million on the production, according to Billboard magazine (“Super Bowl Halftime Shows Cost Millions. Who’s Paying?” Billboard.com, Feb. 5, 2021) — the most expensive “pay-to-play” event a musician will ever encounter.

While the NFL covers most of the production costs of the annual event, the value to the artist is access to the largest captive audience in the world — Super Bowl LVII was viewed by 115.1 million people. After their Super Bowl performances in previous years, “Shakira‘s Spotify tracks increased by 230% compared to the previous week, and Jennifer Lopez’s music went up by 335%,” Billboard reported. Rihanna’s digital album sales skyrocketed 301% after her halftime performance in this year’s Super Bowl, according to Forbes.

In Los Angeles, iconic venue Whiskey a Go Go has long been a “pay-to-play” venue. Audiences often include record label executives and talent scouts. For bands looking to get signed, the cost to play there is viewed as a necessary marketing spend. Given the history of musical acts that launched careers there — ranging from Otis Redding to Guns N’ Roses — it’s a reasonable investment. 

But in Colorado, that practice has never taken hold — certainly not at the myriad small-to-midsized venues dotting the Front Range. Occasionally, major touring acts allow local acts to “sign on” to their tour as an opener at a large venue for a fee — but again, that’s for access to a major act’s sizable audience and it can be worth the cost for that kind of quantifiable exposure. However, that’s the exception. Not the rule. 

According to the U.S. Bureau of Labor Statistics, the average hourly pay for a professional musician is $36.01. That’s for the performance — not rehearsal/practice time, composition, arranging, or any of the other effort that goes into the job. It’s important to note: this information is based on trackable data. The vast majority of musicians’ income is still untrackable. When John Smith plays a gig at Frank’s Tavern and gets paid with a check written to “John Smith” — there’s nothing telling the BLS that payment was for a music performance — even if it’s still reported as “income” to the IRS. Since the BLS data comes from musicians successful enough to have a recognizable, steady income as such, it’s reasonable to assume the actual average pay for a musician is far lower. In Colorado, anecdotally at least, it appears most professional musicians average between $50-$100 per gig.

Trumpter Steve Illich and David Flomberg playing with Reptiles and Samurai at the Oriental Theater. Credit: Deb Flomberg-Rollins

Pay to Play on the Local Stages

Bridging The Music Promotions LLC, founded locally by Jonah Lipsky, now headquartered in New York, doesn’t operate according to the Centennial State’s established norms. The consensus among both proponents and detractors of BTM call it the same thing: “Pay-to-play.”

BTM books an artist for a specific event where BTM has secured a venue. That artist is responsible for selling an agreed-upon number of tickets for that event. BTM gets 100% of that revenue. For the next cohort of tickets sold above that number, the artist keeps 100%. For every ticket after that, there’s a split between the artist and BTM. If the artist doesn’t meet the number of ticket sales agreed upon in the first cohort, they are still responsible to cover the difference to BTM.

On June 21, BTM emailed me unsolicited (I founded and manage an Oingo Boingo tribute band called Reptiles and Samurai) to see about performing their “miniFEST”:

“Hi Reptiles and Samurai… I just wanted to see if you’re possibly available to perform on September 23rd at Denver miniFEST at Herman’s Hideaway? I have a really good lineup for this show already, but I am looking to fill a few more slots. If you are available please let me know and we can discuss. Also please note, we offer all performers a free HD video of the event, you will play in front of a new audience and we also pay very fairly based on your attendance. In general it’s such a good event for networking, expanding and growing your fanbase. Feel free to email me here or we can jump on a call.”

The timing was serendipitous. I had literally just spoken with local musician and Colorado Musicians Union co-founder Sarah Mount (profiled in YS: “Spotlight on Sarah Mount,” June 12, 2021) a week before about BTM’s business model because of a Facebook post she published decrying this model. Her post on the topic — where multiple local musicians weighed in referring to BTM as a “scam” —  was responded to with a cease-and-desist letter from BTM’s attorney, Mateo Perez, esq. We’ll revisit that in a moment.

Sarah Mount

I scheduled a call via that email and ended up on the phone with Lipsky.

(Disclosure: On that first call, I did not reveal that I was a journalist — I wanted to hear his full pitch from the perspective of an actual client.)

“We use a ‘business partnership’ kind of situation,” Lipsky said. “Everyone we book must sell at least 35 tickets and the next set of tickets is profit. So if you sell 70 tickets at the base price of $22, you make $770 at that point so there is a lot of money on the back end of things where you can do really well on ticket sales. We also live stream the event… We pay you $5 to $7 on each live stream order, separate from the ticket requirement, so you start making money for those right away. We give you a clear HD video of the entire event. We give you a free group video on stage on our Instagram page, and if you want an edit, it’s only $100. Based on that do you have any questions?”

“How do you handle your marketing on your end?” I asked. 

“We have digital posters with all the artists on them, online calendars, we also make collages with all the people involved. Most importantly we keep everyone motivated, organizing as leaders so as to get a really good night, and with everyone selling tickets it makes it beneficial — when you don’t have that you are playing to a small audience.” Additionally, Lipsky said he sets aside some money for paid social media promotion. “Typically a couple of hundred dollars.” Lipsky said he had 12 acts lined up, each with a 30-minute slot to perform. But whether or not it actually happens at Herman’s Hideaway may be in question. 

“That date in specific is a little up in the air right now,” said Joe Hoffman, talent buyer at Herman’s Hideaway, where BTM is producing the show Lipsky wanted to book my band to play. I spoke with Hoffman over the phone after I chatted with Lipsky. “That (event) was apparently booked before we took over.”

Herman’s Hideaway changed ownership in March, 2023, and the deal with BTM pre-dates Hoffman’s employment with the venue. “Bridging The Music — the way they approach things doesn’t necessarily align with the way we want to approach things. I haven’t seen a contract yet. I don’t really wanna discuss this too much, honestly, but there’s an existing contract that is probably gonna have to be honored.” 

Herman’s model has been consistent for decades: Bands got paid based on attendance for their shows. It’s not pay-to-play, but acts often would be lucky to make enough to cover the cost of gas getting to the venue. Under new ownership, Herman’s is changing that model by providing a guarantee to bands, which has been lauded by performers who’ve played there since.

“The place is looking great,” said Troy Thill, a saxophonist who performed there recently with Denver-based reggae band Iron Roots. “We played on a week night and still got paid a guarantee, the sound system’s way better, they cleaned up the green room — it was a better experience all around than it was in the past.”

So, why would someone pay to perform on Herman’s Hideaway’s stage? According to Hoffman, Herman’s capacity is 500. Based on the contract I received, if 12 acts are on the bill for this BTM event, and each act actually sells 35 tickets, that adds up to 420 sales just for all of the bands to break even. This leaves a total of 80 potential “profit-making” tickets to be sold. At $22 per ticket, that’s a pot of $1,760 to be split among 12 bands, or $146 total, per band. 

The most important takeaway from the contract Lipsky offered: The band would be on the hook for $770 to perform at this event. Additionally, “streaming tickets,” as well as any tickets sold at the door, do not qualify against the 35 tickets the band is contractually responsible for. And about that contract: Lipsky made me pay a $20 “registration fee” through his online system just to get a copy of the contract. As a professional musician with 30 years of experience, I’ve never been charged a fee just to get a contract.

All of this is to say: This is the very definition of a pay-to-play model.

ABOVE: This is the contract provided by Jonah Lipsky to Reptiles and Samurai.

I paid the $20 and got the contract, which I later shared with attorney Max Hass, a partner at Holon Law Partners who specializes in entertainment law, among other areas. 

“This is music vulturism at its worst,” Hass said.

“If a client handed me this contract,” he continued, “I’d tell them either don’t sign it, or we’d have to basically re-write the whole thing…There isn’t a single obligation on the side of the promoter other than this line, ‘promoter will provide the Artist a performance slot at the event.’ There’s a basic concept in contract law that there is an equitable exchange of obligations on a contract. Everything here is about the artists’ obligations, nothing here about what the promoter is obligated for. Nothing even about promotions or marketing. It’s dangerously close to being unenforceable in Colorado.”

Not all that surprising, considering Lipsky’s attorney’s legal tactics (assuming he drafted the contract), starting with the questionable cease-and-desist notice he sent to Sarah Mount:

As I tried to contact Perez for comment on this article, I discovered an attorney named Mateo Perez received an official admonishment by the New Jersey State Supreme Court in 2013 for practicing law in the State of New York without a license for a case he tried there in 2011.

(Full pdf available for download HERE.)

A search of Colorado Supreme Court’s Office of Attorney Regulation Counsel returned no results, suggesting Perez does not appear to be licensed to practice in the State of Colorado.

A search of the New York Unified Court System revealed no records as well, suggesting that Perez is not currently licensed to practice law there either.

Even more curious is the language in the cease-and-desist letter Mount received. Perez wrote: “If you do not comply with this cease-and-desist then a lawsuit may be filed in the proper jurisdiction seeking monetary damages and legal fees, as well as pursuing all available legal and criminal remedies for your harassment.” 

According to attorney Michael Gates, a partner at Foster Graham Milstein & Calisher, LLP law firm in Denver, that tactic is not allowed: “Threatening criminal prosecution or administrative action to gain an advantage in a civil lawsuit negotiation is a violation of Rule 4.5 of ABA model rules adopted in most states, including Colorado,” he said.

Multiple attempts to contact Perez via email and phone have gone unanswered.

Later, I found that Lipsky had also dissolved the LLC in Colorado back in 2019. No LLC operating under that name is registered with the State of New York where Lipsky now resides, or the State of New Jersey where his attorney is located, (according to his letterhead). Between the contract, the dissolution of Lipsky’s LLC in Colorado, and the legal tactics employed by his attorney (and the fact I couldn’t reach him at all), it was time for another chat with Lipsky. 

The View From Backstage

First up: the contract itself and concerns Hass raised such as the lack of obligations like promotions or marketing on BTM’s part. 

“That has nothing to do with the contract at all,” Lipsky said. “This is a ticket agreement… We do supply a lot of other things, but that has nothing to do with the deal.”

“Your cancellation clause mentions plenty of obligations around the artist’s side for cancellation, but zero obligations on your side for cancellation,” I said.

“It says if anything got canceled, we’d move to a different date and time,” Lipsky said. “It also says all dates and venues are subject to change.”

“Yes. It does,” I replied. “But it also doesn’t specify any framework of time whatsoever to get rebooked. That could be what, three months, 10 years? How many bands implode after a year or two?” 

I inquired about his dissolution of the LLC in Colorado in 2021. Lipsky didn’t like the line of questioning. “Why does that have anything to do with our contract?” he asked. I replied that it called into question the credibility of the business he was asking me to enter into a “partnership” with, as per our first call. Lipsky said BTM is registered as an LLC, but would not share which state it was registered in.

I revealed my identity as a reporter at this point, along with the information I uncovered about his attorney. I asked if his attorney drafted the contract. Lipsky refused to answer. I asked what other bands were on the bill, and he also refused to answer. That’s another sticking point — according to the contract he sent me, the band was on the hook to sell tickets and pay him money long before the event itself was scheduled. Trying to sell a $22 ticket to someone and telling them, “Well, my band is playing for 30 minutes and there are also 11 other bands on the bill, but I can’t tell you who those bands are,” seems like a pretty tough uphill battle. 

Lipsky did clarify that the deal he offered me was not the same deal for everyone. “Let’s say like you’re a solo act and you’re like, ‘Hey, I can only sell like, like 15, 20 tickets.’ …We’re not gonna contract somebody on a 35-ticket deal that can only sell like, you know, a handful of tickets. That’s not our style at all. We have a lot of artists that have, like 10-ticket deals, 15, 20.”

Throughout our call one thing became clear – Lipsky believes in what he does and finally acknowledged that the value BTM brings to the artists it books has less to do with money and more to do about “exposure” and “networking” despite the focus of the contract. And there are other artists who agree.

The View From The Stage

KeithM McClinton is an R&B/Pop artist in Chicago who also works as an extra on TV shows that have included Empire and Shameless. McClinton first performed at a BTM event in Chicago last October and has since played BTM events in Minneapolis and Atlanta (find out more about him at linktr.ee/4keithm).

“I knew it was pay-to-play,” McClinton said via a phone call. “To me, it was like I was booking the actual venue. You gotta pay the deposit, get a certain amount of tickets. And then you’ll get a back end of the ticket sales.” For McClinton, it wasn’t about the money.

“Even after the 25-ticket sales … There’s still not a profit, he said, laughing. “You’re not gonna get that back unless you are at least bringing in 100 people…It’s like gambling to me. But I met people; that was a success for me. I got friends in Minneapolis now because of what I did with Bridging the Music. The value is about expanding your reach, networking, and having the opportunity to grow your fan base,” McClinton said. 

Ian Svagdis, drummer for the band Mojocat based in Boston, echoed the sentiment. “It was about exposure and networking,” he said. “It was great to meet a lot of the other bands — people in the scene I hadn’t met yet. We had a great experience playing, but also just backstage meeting new people.” (Find out more about Mojocat at facebook.com/mojocatband).

Between McClinton and Svagdis’ experiences, a picture started to form that clarified things: The BTM model isn’t for professional, established musicians. It’s aimed at those just getting started. But even for novices, the Colorado Musicians Union is vehemently against the pay-to-play model.

“The Pay-to-play model…is a predatory model which ultimately serves the employers of said musicians by extracting value generated by the performers into their own pockets, while also ensuring that any losses or underselling of tickets would be at the loss of the musicians and not the employer,” said Frederick Pagnani, one of the founders of the Colorado Musicians Union. “Can we think of another job where this is the case? Are grocery baggers, clothing store cashiers, etc. expected to provide customers for the business or to pay the business when sales are short one day?”

Pay-to-play aside, even the “networking” aspect of the BTM model leaves much to be desired by Mount’s estimation. “It’s a situation where all these newcomers are getting together with each other, and what appears to be missing is leadership from the music scene,” Mount said. “There are open jams every night of the week all over the city, and they’re attended and hosted by players at every level — like the guys from Lettuce, for example. There’s so much more value for newcomers in a situation like that, as opposed to one where you’re paying to play on a stage with a bunch of other artists who are also just starting out and learning the scene.”

Ultimately, regardless of where the value lies for novice musicians, the million-dollar question remains: How does the pay-to-play business model impact the profession in general? 

Ask most professional musicians in Colorado, and they’ll tell you the answer: Poorly. 

Learn more about the Colorado Musicians Union at www.comusiciansunion.com.

The post Spotlight on Pay to Play appeared first on Yellow Scene Magazine.